United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) OVERRULING PLAINTIFF'S
OBJECTIONS (DKT. 23), (2) ACCEPTING THE
RECOMMENDATION OF THE MAGISTRATE JUDGE (DKT. 22), AND
(3) GRANTING DEFENDANT'S MOTION TO
DISMISS (DKT. 16)
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
Kristy Downing filed this case against Defendant Ford Motor
Co. (“Ford”), alleging violations of the Sherman
Act, 15 U.S.C. § 1, and claims of tortious interference
with business expectation. The matter was referred to
Magistrate Judge Steven Whalen for all pretrial proceedings.
See Order of Referral (Dkt. 9). The magistrate judge
issued a Report and Recommendation (“R&R”)
(Dkt. 22), recommending that Ford's motion to dismiss
(Dkt. 16) be granted and that the complaint be dismissed with
prejudice. Downing timely filed an objection to the R&R
(Dkt. 23), Ford filed a response (Dkt. 25), and Downing
submitted a reply (Dkt. 26). For the reasons that follow, the
Court overrules Downing's objections, adopts the
magistrate judge's recommendation, grants Ford's
motion to dismiss (Dkt. 16), and dismisses the case with
is an unemployed patent attorney who worked with Ford in some
capacity beginning in 2000. Compl. ¶¶ 7, 11 (Dkt.
1). She first clerked as a product development engineer, then
worked in Ford's college graduate rotational program.
Id. ¶ 11. After graduating law school in 2003,
she clerked in Ford's in-house patent department before
being transferred to Quinn Law Group, a law firm that is
“strictly prohibited from doing Ford work.”
Id. ¶ 13. Downing does not discuss what
happened between 2003 and 2008, but alleges that in 2008, she
left the law firm of Foley & Lardner and reached out to
Ford's chief intellectual patent (“IP”)
counsel, Bill Coughlin, regarding employment opportunities.
Id. ¶ 14. Coughlin instructed his in-house
counsel team to provide her with work as a solo practitioner.
alleges that she experienced sexual harassment at different
“places of public accommodation” during her time
as a solo practitioner. Id. ¶ 15. These places
included Life Time Fitness, LA Fitness in Livonia, Washtenaw
Community College's fitness center, Ford's office
facilities in Dearborn, Downing's neighborhood in
Westland, and in commercial real estate Downing rented in
Novi, Michigan. Id. Downing filed a lawsuit against
Life Time Fitness, Downing v. Lifetime Fitness, No.
2:10-cv-11037 (E.D. Mich.). Id.
February 2012, she applied for two positions with the U.S.
Patent and Trademark Office (“USPTO”), and
alleges that she was the “best qualified”
applicant for both positions. Id. ¶ 16. In July
2012, she visited the USPTO's new satellite office in
Detroit. Id. ¶ 17. Downing alleges that the
USPTO staff treated her with “hostility”; one
employee questioned her and followed her around, while a
“mall-cop” attempted to flirt with her.
Id. Six weeks after the event, Downing was served
with a ticket for disorderly conduct based on her visit.
Id. ¶ 18. She attempted to contact the patent
office to tell her side of the story, but no one ever
responded. Id. The charges against her were
eventually dismissed. Id.
decided to stop working as a solo practitioner for Ford in
April 2013. Id. ¶ 19. She informed Coughlin
that she would try to find patent work in Washington, D.C.
and also informed him that if he would like her to work for
one of Ford's “provider firms, ” she would be
willing to do so. Id. He agreed to be a reference
for her if she sought future employment. Id.
However, an attorney working for Ford's in-house patent
department told Downing that Ray Coppiellie, a Ford patent
attorney, had told the attorney that Downing “was no
longer practicing patent law.” Id. ¶ 20.
faced difficulty in finding work since leaving Ford in 2013.
She applied to the District of Columbia bar in 2013, but she
alleges that David Kelley, a member of Ford's in-house
patent team, delayed in verifying her past employment to the
National Conference of Bar Examiners. Id. ¶ 21.
Downing has applied for work at the USPTO, private law firms,
IP firms, and with her previous legal employers, Foley &
Lardner and Quinn Law Group, all to no avail. Id.
¶ 22. She also unsuccessfully applied to engineering
positions that do not require a law degree with various car
manufacturers, such as Toyota and General Motors.
Downing claims that she realized that Coughlin effected a
“no-poaching” agreement with respect to her hire.
Id. ¶ 24. She alleges that Coughlin has done so
because he would like to force her to work as an independent
contractor for Ford, but not to be a Ford employee, so as to
be immune from any discrimination claims. Id.
claims that Coughlin has done the exact same thing to two out
of five other women that she knows to have worked in-house at
Ford, but never to any men. Id. In 2008, Coughlin
laid off two men and two women who had worked as in-house
counsel. Id. ¶ 25. The two men now work for law
firms, but the two women, Diana Brehob and Gigette Bejin,
have “struggled profusely” and have been
“forced to work as solo practitioners essentially doing
only Ford work.” Id. Downing further alleges
that Coughlin has been hiring and training less-qualified
male attorneys - either by hiring them himself or by having
law firms such as Dykema Gossett or Brooks Kushman hire them
- rather than rehiring her, Brehob, or Bejin. Id.
requested Equal Employment Opportunity investigations at
General Motors, Foley and Lardner, and the USPTO to determine
why she was not hired. Id. ¶ 35. She claimed
that the responses included either a “fabricated
story” that she had allegedly disgraced herself, or
referred to “protected activity” that she had
engaged in (i.e., filing civil rights lawsuits or her
Wisconsin bar license suspension due to disability).
Id. ¶¶ 35-37. Specifically, General Motors
stated it did not hire her because of her lawsuit against
Life Time Fitness and because her Wisconsin bar license was
suspended; Foley & Lardner stated that it did not hire
her because she “filed several frivolous and vexatious
lawsuits against JC Penny, Life Time Fitness and Judge
Patrick Duggan, ” and because of the suspension of her
Wisconsin bar license. Id. Downing claims that these
reasons are “pretext” for participating in
Ford's no-poaching agreement. Id. ¶ 37.
Downing further asserts that an employment agreement she had
with the USPTO was unlawfully terminated in 2016; the
“reason” for this was based on “three
completely false rumors.” Id. ¶ 38.
Coughlin was listed as a reference for this position.
also alleges that in 2015, she attempted to sell a patent
(the “Patent”) which was ultimately purchased in
November 2015 “for a fraction of its market
value” by Open Invention Network (“OIN”).
Id. ¶ 40. She claims that Ford “was to
soon become a member” of OIN, and that Coughlin used
the payment of her invention royalties “as an excuse to
have others continue to participate in his no-poaching
agreement” for an additional year. Id.
filed the instant complaint on February 28, 2017, alleging
that Ford (i) violated the Sherman Act, 15 U.S.C. § 1,
by being the “ringleader” in a gender-based
“no-poaching agreement”; (ii) tortuously
interfered with her employment at the USPTO; and (iii)
tortuously interfered with her sale of the Patent. Ford filed
a motion to dismiss all counts (Dkt. 17) on April 7, 2017,
which Magistrate Judge Whalen recommended granting.